Plan to close Gitmo 'in shambles'

Nestled among a string of improbable victories President Barack Obama racked up in the lame-duck congressional session is legislation containing the most debilitating setback to date to his plan to close the military prison at Guantanamo Bay and send many of its detainees to trials in civilian courts in the U.S.

Language contained in the 2011 National Defense Authorization Act passed by the House and Senate on Wednesday bars the use of Pentagon funds to transfer any Guantanamo prisoner to the U.S. for any reason, including a trial. Some supporters of plan Obama announced on his first full day in office to close the prison said the passage of the legislation signals nearly complete capitulation by the president.

Story Continued Below

“Obama’s original plan is in shambles,” said David Remes, an attorney for 14 Yemeni detainees at Guantanamo. “From the outside it appears to be in shambles because he was never sufficiently committed to the success of his own plan, and as a result, Republicans were able to mobilize to turn the issue against him, and he provided the congressional Democrats no leadership.”

For about a year, senior national security officials have struggled with the issue of whether to try alleged Sept. 11 plotters like Khalid Sheikh Mohammed in a military commission or a civilian court — and, if so, where. The new legislation seeks to short-circuit that process by leaving military commissions as the only trial option. Other new requirements in the legislation could slow or stop transfers from Guantanamo to other countries.

In recent days, Attorney General Eric Holder warned that the limits could violate the Constitution by intruding on the executive branch’s right to make decisions about where prosecutions should be brought. However, the White House has pointedly refused to say whether Obama’s objection to the Gitmo provisions is so strong that he would veto the entire defense measure.

“I don’t think he’s likely to veto it, though I’d be pleasantly surprised if he did,” said Laura Murphy of the American Civil Liberties Union, which opposes the limits on trials and transfers. “There’s just too much at stake in the bill itself, which goes to the war effort and Defense Department funding.”

The precise origins of the Guantanamo language in the defense bill are murky. Some Republicans in Congress have been pushing a flat-out ban on transfers to the U.S. for more than a year. That type of provision first passed the House in an early version of the defense bill in May.

However, in recent weeks, similar Guantanamo restrictions began appearing in versions of defense bills, omnibus budget legislation and stopgap spending measures proposed by Democratic leaders. Incoming Sen. Mark Kirk (R-Ill.) said he was insisting on an airtight ban in order to be assured that an Illinois state prison the Obama administration wanted to buy to house Guantanamo prisoners would be used only for ordinary convicts if the feds acquire it.

Sen. Dick Durbin (D-Ill.), one of Obama’s most loyal allies on Guantanamo and detainee issues, said the restrictions were simply an acknowledgment of the lack of support in Congress for Obama’s approach.

“I think it’s necessary to include the language,” Durbin said. "I supported the president’s position on [the Illinois prison] initially — that issue has been resolved politically, and this bill, the language in it, reflects the political reality."

“On the Republican side, you have the politics of fear, and on the Democratic side, you have a fear of politics,” said Tom Malinowski of Human Rights Watch.